Ruling looms on FCC’s authority

A broad Supreme Court decision could toss indecency regime

Seven years ago, when the FCC was in the midst of a crackdown on fleeting expletives uttered in primetime, and Congress was on the warpath after Janet Jackson’s wardrobe malfunction, I asked a network chief what to make of the situation.

The end result, he predicted, would be a showdown in the Supreme Court, where the FCC’s very ability to regulate indecent content could well be watered down — or maybe eliminated all together.

Well, here we are. On Tuesday, the Supreme Court will hear oral arguments in FCC v. Fox Television Stations, the networks’ challenge to the FCC’s current indecency regime. Broadcasters not only want the high court to throw out the FCC’s W-era hardline on so-called fleeting expletives and images, sanctions for a stray f-bomb or shot of a woman’s behind, but to reconsider the landmark 1978 Pacifica decision that upheld the FCC’s authority to regulate indecent content on the airwaves after George Carlin gave his infamous “seven dirty words” monologue on the radio during the daytime.

In the eyes of the networks, Pacifica is ripe for re-evaluation given the changes in technology and viewing habits. Back in 1978, the high court’s justification for a lower First Amendment threshold for broadcasters was that stations have a “uniquely pervasive presence in the lives of all Americans” because their reach extended into the privacy of the home. Now it is more than likely that cable and satellite, which don’t face the same scrutiny, are what viewers watch in their living rooms.

The case stems from Fox broadcasts of the Billboard Music Awards in 2002 and 2003 in which Cher and Nicole Richie, in separate incidents, uttered expletives during the live telecasts. But the high court also is taking up a sanction against ABC for a 2003 “NYPD Blue” episode, “Nude Awakening,” that showed a woman’s behind and a small portion of the side of one of her breasts. Officially, the high court is not taking up the most famous of all incidents, the 9/16th of a second shot of Janet Jackson’s nipple during the 2004 Super Bowl halftime show, but their decision will undoubtedly have an impact on the future disposition of that case. The 3rd Circuit Court of Appeals recently struck down a $550,000 fine on CBS stations for the exposure.

The networks found sympathy in appellate courts that the FCC’s rulings were unconstitutionally vague and violated the First and Fifth amendments. Oddly enough, they responded optimistically when the Supreme Court ruled against them in 2009. In the 5-4 decision, the high court ruled that the FCC was within its authority in its rulings, but the justices kicked constitutional questions back to the lower courts. Justice Clarence Thomas voted in the majority but, in a concurrent opinion, wondered whether the indecency policy made sense in a landscape where broadcast television is no longer “uniquely pervasive.” Broadcasters not only see the FCC’s regime as outdated but believe that the crackdown on fleeting expletives went beyond the intent of the court in the Pacifica decision.

The Roberts court has given a wide berth to the First Amendment, as in the decision last year striking down a California law banning the sale of violent videogames to minors. So the question here is of scope: Will they limit their decision to the question of cracking down on fleeting profanity and nudity or address the entire indecency policy itself.

The FCC argues that its regime is not only constitutional but reasonable. They noted that Pacifica allowed for a “contextual” approach to indecency — news broadcasts have more free reign than award shows. As for the policy being vague, the FCC notes in its brief that Fox bleeped out the swear words in later broadcasts of the Billboard Music Awards, meaning it had little trouble understanding what was indecent and what was not.

Tim Winter, president of the Parents Television Council, which has led the drive to clean up the airwaves, believes there is a good chance the high court will at least send the “fleeting expletives” policy back to the FCC. If they go further, he fears an FCC stripped of its authority.

Obviously, the high court’s decision, like so many they are considering this term, has enormous ramifications for Hollywood. If the networks win, expect a backlash. Winter said such a ruling could inspire a new drive to demand that cable channels be provided on an “a la carte” basis to customers. This is an election year, and as much as the economy is on the minds of voters, the “uniquely pervasive presence” in the living room has a way of making it to the stump.